George Katsimberis and Coolfitch Investments (Pvt) Ltd and Glasswing Investments (Pvt) Ltd and Halinka Investments (Pvt) Ltd v Kenneth Raydon Sharpe and Kilimanjaro Porcupine and Hamster Trust and Pokugara Properties (Pvt) Ltd and City of Harare and Gunhill Ecofriendly Estates (Pvt) Ltd and Borrowdale Ecofriendly Estates (Pvt) Ltd and Pokugara Ecofriendly Estates (Pvt) Ltd and Chief Registrar of Deeds

### Preamble
1
HH 649-18
HC 8943/18
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GEORGE KATSIMBERIS

and

COOLFITCH INVESTMENTS (PVT) LTD

and

GLASSWING INVESTMENTS (PVT) LTD

and

HALINKA INVESTMENTS (PVT) LTD

versus

KENNETH RAYDON SHARPE

and

KILIMANJARO PORCUPINE AND HAMSTER TRUST

and

POKUGARA PROPERTIES (PVT) LTD

and

CITY OF HARARE

and

GUNHILL ECOFRIENDLY ESTATES (PVT) LTD

and

BORROWDALE ECOFRIENDLY ESTATES (PVT) LTD

and

POKUGARA ECOFRIENDLY ESTATES (PVT) LTD

and

CHIEF REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

MUZENDA J

HARARE, 28 September 2018, 1, 2 October 2018 and 12 October 2018

Urgent Chamber Application

T. Magwaliba, for the application

T. Zhuwarara, for the 1st – 3rd respondents

C. Kwaramba, for the 4th respondents

MUZENDA J: This urgent chamber application was brought to me on Friday 29th September 2018 after hours and I issued an interim order interdicting the demolition of a structure constructed on stand 19828 Harare Township registered in Pokugara Properties (Private) Ltd, (the 3rd respondent) and directed the Registrar to set the matter down for the 1st  October 2018. On 1 October 2018 the parties agreed to defer the hearing to the 2nd October 2018 to allow the first-third and fourth respondents to file their opposing papers.

The face of the application shows that the application was made in terms of r 244 of the High Court Rules. The four (4) applicants are seeking the following relief:

“TERMS OF ORDER MADE/SOUGHT

TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

that the provisional order be and is hereby confirmed

that the decision of the 4th respondent contained in its letter of the 26th July and 6th September 2018 be and is hereby set aside

that the costs of this application be paid by the 1st-4th respondents jointly and severally, the others to be absolved on a legal practitioner and client scale.

INTERIM RELIEF GRANTED

2.	Pending the return day the applicants be and are hereby granted the following interim relief.

2.1	that the 1st -4th respondents be interdicted from proceeding with the demolition of the house constructed on stand 19828 Harare Township which is presently registered in the name of the 3rd respondent.

2.2	that the 1st – 3rd , 5th and 6th respondents be and are hereby interdicted from selling, disposing of, alienating transferring or dealing in the following pieces of land pending finalization of proceedings to be instituted by the applicant in respect of the 3 joint Venture agreements entered into by and between the applicants and the 1st and 2nd respondents.

2.2.1	Stand 19828 Harare Township registered in the name of the 3rd respondents.

2.2.2	Stand 19609 Harare Township of Salisbury Lands registered in the name of the 5th respondent

2.2.3	Stand 19830 Harare Township of Salisbury Township Lands registered in the name of the 6th respondent.

2.3	that the applicants shall initiate arbitration proceedings in terms of the aforesaid joint Venture agreements or institute court proceedings for the resolution of the disputes between the parties in relation to the agreements within 10 working days of this provisional order failing which this provisional order shall lapse and be of no further force or effect.”

The first –fourth respondents filed their opposing papers on Tuesday, the 2nd October

2018 just a few minutes before 1430 hours, the time agreed by the parties. They all raised points in limine. The fifth to eighth respondents did not file opposing papers.

BACKGROUND

The applicant George Katsimberis is a director of Glasswing Investments (Private) limited, Coolfitch Investments (Private) Limited and Halinka Investments (Private) Limited, all four forming the applicants in this urgent chamber application. Coolfitch Investments (Private) Limited (second applicant) entered into a joint venture with Kilimanjaro Porcupine and Hamster Trust (second respondent) but the joint venture is collapsing or has already faultered. The third respondent Pokugara Properties (Private) Limited is the registered owner of Stand 19828 Harare Township, which house was constructed without necessary approved plans by the City of Harare (fourth respondent). The fourth respondents had given the third respondent up to 30 September 2018 to demolish the illegally constructed structure. The applicants became aware of the intended demolition through an e-mail attached to a letter from Dube, Manikai and Hwacha dated 18 September 2018. There was also a letter of 26 July 2018 from the City of Harare (fourth respondent) giving the third respondent upto 30 August 2018 to demolish the structure, that deadline of 30 August 2018 is the one which was extended to 30 September 2018. The applicants learnt of the decision to demolish, they say, on 25 September 2018. They then instructed their legal practitioners to lodge the urgent chamber application.

POINTS IN LIMINE

The first, second and third respondents have raised three points in limine. The first is that the applicant’s urgent chamber application have been lodged in the wrong template, the applicants have not used Form 29 as required by the proviso in order 32, r 241 (1) of High Court Rules, 1971. The second point in limine by the first-third respondents is that the matter is not urgent. The dispute between the applicants and the third respondent began as far back as 11 January 2018 when the agreements interparties was cancelled. The applicants were also aware that the first and third respondents had long since invalidated the joint venture agreement and that was done via the 29 March 2018 letter. They were also reminded of the cancellation of the agreement on 11 April 2018 and 16 April 2018 letters. By the above aforementioned dates the applicants were alive to the disputes between the parties and also that the third respondent no longer considered itself bound to any agreement or obligations towards the applicants. The applicants were also removed and banned from the building site as far back as the ides of 1 March 2018 but did not file any process nor lodge any complaint. Neither the certificate of urgency nor the founding affidavit addresses the logic why the applicants have been indolent.

The third point in limine by first to third respondents was the incompetent relief being sought by the applicants in that the applicants have alternative relief at their disposal. They can claim damages for all monies, fees and costs incurred due to the cancellation of the joint venture agreements. The applicants are yet to lodge any process or arbitral proceedings challenging the cancellation of the agreement inter partes. In both the interim and final relief craved, the applicants do not seek to challenge the said administrative decision to have the structure demolished, the applicants in any case cannot competently seek an interdict stopping the destruction of the defective structure they built.

The fourth respondent aligned itself to the first to third respondents preliminary points and equally prayed for the removal of the urgent matter from the roll with costs.

After all parties submissions the court reserved judgment so as to analyse critically all points raised by the legal practitioners.

WRONG FORM

Order 32 r 241 (1) of High Court Rules, 1971 provides as follows:

“A chamber application shall be made by means of an entry in the chamber book and shall be 	accompanied by Form 29 B duly completed and except as is provided in sub-rule (2) shall be 	supported by one or more affidavits setting out the facts upon which the applicant relies.

Provided that where a chamber application is to be served on an interested party it shall be in 	Form No. 29B with appropriate modifications.”

Mr T. Zhuwarara for first - third applicants submitted that the failure to comply with r 241 (1) by the applicants was that there was nothing before the court to determine because the applicants’ application was neither in Form No. 29 nor Form No. 29B. In response to this particular point in limine Mr T. Magwaliba expressed the unnecessary raising of points in limine and moved the court to condone the non-compliance with r 241 (1). To the applicants non-compliance does not constitute a fatal defect of an urgent application. The respondents were not incapacitated in any way and they have since been able to file their opposing papers. The point in limine raised by the applicants in this court’s view holds weight. In the matter of National Social Security Authority v Denford Chipunza SC 116/04 ziyambi JA at p 6 of the cyclostyled judgment stated

“There is a limit beyond which a litigant escapes the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of this court. Considerations ad misericordian should not be allowed to become an invitation to laxity. In fact this court has lately been burdened with undue and increasing number of applications for condonation in which the failure to comply with the rules of this court was due to neglect on the part of the attorney. The attorney after all is the representative whom the litigant has chosen for himself and there is little reason, why, in regard to condonation with a failure to comply with the rules of court, the litigant should be absolved from the normal consequences of such a relationship no matter what the circumstances of the failure are. (Cf Hepworths Ltd v Thonrloe & Clarkson Ltd 1922 TPD 336; Kingsborough Town Council v Thirlwell & Anor 1957 (4) SA 533.)”

(See also Saloojee & Anor NNO v Minister of Community Development 1965 (2) SA 135 (A) at 141 A-C; Viking Wood Work (Pvt) Ltd v Blue Bells Enterprises (Pvt) Ltd, 1998 (2) ZLR 249 at 251.

The learned Judge of Appeal added the following

“The legal practitioner’s conduct in this case exhibits a disdain for the Rules of this Court bordering on an abuse of a court process. (See At the Ready Wholesalers (Pvt) Ltd t/a  Power Sales v Innocent Katsande & Ors SC 7/03.

“There is a constant flow of applications for condonation of the non-compliance with the rules of this court, often based on flimsy and inane excuses. The pronouncements issued by this court appear to fall on deaf ears. It must be emphasised that the rules of court are enacted for the purpose of regulating the conduct of matters brought before the court and that condonation of the failure to observe them is not automatic or there for the asking. An applicant must make out a good case for condonation of his non-compliance with the rules. Failure to do so is fatal to his application.”

In the matter of Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Company of

Zimbabwe (Pvt) Ltd and The Sheriff for Zimbabwe, HH 667/15 MAFUSIRE J dealing with a similar point in limine relating to r 241 (1) clearly defined what is to be done:

“In casu the applicant’s urgent chamber application was one to be served. Indeed it was served. So it had to be in Form No. 29. But it was not. It was also not in Form No. 29 either.

Form 29 is for use in ordinary court applications or those chamber applications that require to be served. One of its most important features is that it sets out a plethora of procedural rights. It alerts the respondent to those rights. For example, in notifying the respondent of the court application, the form also notify the respondent of his rights to oppose the application and warm him to the consequences of failure to file opposing papers timeously.

On the other hand Form 29B, for simple chamber application requires the substantive grounds for the application to be stated in summary form, on the face of that form.

In Simross Vinters (Pty) Ltd v Vermeulen V R G Africa Ltd v Waters t/a Trend Litho Consolidated Credit Corporation (Pty) Ltd v van Der Westhuizen 1978 (1) SA 779 (T) at 783 H-784 A COETZEE J stated

“[T] he more fundamental difficulty arises that the documents which purports to be a notice of motion is, as have indicated above a nullity and, I have grave doubt whether the court has power under this Rule to repair a nullity a concept in law which  carries in itself all the elements of irreparability. In addition it must emphasised that Form 2 (a) contains a description of the procedural rights of the respondent after service of the notice of motion. These rights are considerable and substantial. How could a court even if it were not a nullity, put a blue pencil through all these  rights in the absence of the person in whom they reside and without notice to him that such an order which abrogates his rights might be made? This application is struck off the roll.”

Finally in the matter of Richard Itayi Jambo v Church of the Province of Central

Africa & Ors HH 329/13 GUVAVA J (as she then was) stated on p 3 of the cyclostyled judgment:

“This court has stated in a number of judgments that parties are obliged to comply with the rules. Where there is no compliance the applicant must apply for condonation and give reasons for such failure to comply with the rules.

(See Jensen v Avacolos 1993 (1) ZLR 216 SC)

In this case the applicant’s legal practitioner made no effort to comply with this rule despite the fact that the point was raised with respondent’s opposing affidavit. The request to the court to condone the non-compliance was made cursorily at the hearing as if the grant of such condonation is always there for the asking.

It seems to me that a legal practitioner must be reminded that there is an obligation to comply with the rules of this court.”

See also Joshua Nyamhuka & Anor v Abigail Mapangure & 8 Others HH 29/17 where

FOROMA J observed that in the absence of condonation of the failure to comply with r 244 (1) the application is fatally defective. A party has to move the court for such relief.

Mr T Magwaliba for the applicants admitted during hearing that the application does not comply with Rule 244 (1).  When the hearing commenced he did not make an application for condonation.  He allowed the respondents to address the court on the points in limine and only cursorily applied for condonation, during submission in response to the preliminary points.  That was not procedural as already clearly spelt out by the case law authorities cited hereinabove.  Where there is no such application for condonation, the application is fatally defective.  As a result there is effectively no application to talk about.  The first point in limine by the respondents is upheld.

URGENCY

The respondents contended that the application is not urgent.  In the matter of Boniface Denenga & Anor v Ecobank Zimbabwe (Pvt) Ltd & 2 Others HH 177-14 mawadze j clearly summarized the requirement of an urgent matter on p 4 of the cyclostyled Judgment:

“The question of what constitutes urgency is settled in our law.  See Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 at 193 F (H), Gifford v Mazere and Others 2007 (1) ZLR at 134 H-135 A (H).

The general thread which runs through all these cases is that a matter is urgent if

It cannot wait the observance of the normal procedural and time frames set by the rules of the court in ordinary applications as to do so would render negatively the relief sought

There is no other alternative remedy;

The applicant treated the mater as urgent by acting timeously and if there is a delay to give good or a sufficient reason for such a delay

The relief sought should be of an interim nature and proper at law”

The question to ask is did the applicants in this matter set out in the founding

affidavits facts that distinguish the case from others to justify the gravity of the order for urgent hearing without breach of the principles that similarly situated litigants are entitled to be treated.  (See Mayor Logistics (Private) Limited v Zimbabwe Revenue Authority CCZ -7-14)

On p 8-9 of the Mayor Logistics (Pvt) Ltd case (supra) the court ruled that:

“A certificate of urgency must establish the basis upon which a matter is certified urgent and its purpose is to assist the court to decide whether a matter is urgent.  It must complement the founding affidavit even though it is an independent opinion by a practicing legal practitioner, an officer of the court, that indeed from the documents in the founding affidavit and the circumstances of the case, the matter deserves to jump the queue and be given preference. In granting an interim interdict where requirements are settled the court must be guided by the dictates that “an interdict cannot be granted against past invasions of a right and that there can be no interdict against lawful conduct.”

In the matter of Diwn Investments Private Limited t/a Formscaff v Jopa Engineering Company Limited HH 116/98) it was held that:

“A party who brings proceedings urgently gains considerable advantage over persons whose disputes are being dealt with in the normal course of events.  This preferential treatment is only extended where good cause can be shown for treating one litigant differently from most litigants.  For instance where it is not afforded the eventual relief will be hollow because of the delay in obtaining it” and

“a party seeking to be accorded preferential treatment must set out, in the founding affidavit, facts that distinguish the case from others to justify the granting of the order for urgent hearing without breach of the principle that similarly situated litigants are entitled to be treated alike”

(Mayor Logistics Private Limited (supra) and Mapuvere 2006 (1) ZLR 232 (h) at 243 G 244 A – C.

In the case of Tripple C Pigs and Anor v Commissioner General of Zimbabwe Revenue Authority HH – 9/07, the Court in giving guidance on the exercise of its discretion in an urgent application opined that, it must

“……consider whether or not a litigant wishing to have the matter treated as urgent has shown the legitimate interest and whether or not the infringement of such interest is not redressed immediately would not be the cause of harm to the litigant which any relief in the future would render a brutum fulmen”

I am satisfied that the applicant’s, right’s from the certificate of urgency by Mr Herbert Muromba, to the affidavits have been unable to make a case  for the matter to be heard on urgent basis.  The dispute between the parties surfaced long back on 11 January 2018 when the applicants became aware that the joint venture agreement was being cancelled.  Applicants further learnt from the first to third respondents that through the letter of 29 March 2018 that the agreements had long been invalidated.  They were again reminded on 11 April 2018 and letters of 16 April 2018.  On 1 March 2018 the applicants were barred to visit the building site and they did nothing to approach the courts for any  form of relief.  They then surprisingly sought to come to court when they heard that the fourth respondent, City of Harare was calling for the demolition of the building structure.  In fact demolitions had since started and there is no rationale established by the respondents to ask the court to stop that demolition of an illegal structure. There is no explanation tendered by the applicants as to why they were virtually sitting on their laurels. They simply waited for the day of reckoning.  They did not approach the Arbitral court nor High Court for relief. Surely this urgency is self-created.  In any case the fourth respondent has a right to order demolition of an illegally erected structure and this court cannot grant an interdict order against a lawful act by the fourth respondent.

Lastly on the third point in limine raised by the respondents on the aspect of incompetent relief, it was stated in the Mayor Logistics Private Limited case (supra) on pages 8 -9 that:

“it is axiomatic that the interdict is for the protection of an existing right. There has to be proof of the existence of a prima facie right.  It is also axiomatic that the prima facie right is protected from unlawful conduct which is about to infringe it.  An interdict cannot be granted against past invasions of a right for nor can there be an interdict against lawful conduct”

In the matter of Econet Wireless Private Limited v Trusto Male (Pvt) Limited & Anor SC – 43-13 the court held that:

“It is correct that in general terms court should not grant interim relief which is similar to or has the same effect as the final relief prayed for.  The reason for this is obvious.  Interim relief should be confirmed, to interim measures necessary to protect any rights that stands to be confirmed for discharge as the case may be on the return date”

Interim relief is granted on showing prima facie case.  The applicants had difficulties to argue on all the three points in limine. accordingly all the three points in limine are upheld and the following order is granted:

The interim order granted on the 29 September 2018 and extended to the 6 of October 2018 be and is hereby discharged

The application is struck off the roll of urgent chamber applications

The applicants to pay the costs.

Wintertons, applicant’s legal practitioners

Dube Manikai and Hwacha, 1st -3rd respondents’’ legal practitioners

Mbidzo Muchadehama & Makoni, respondent’s legal practitioners